Dangers Of Sua Sponte Issue Exhaustion And Unnecessary De Novo Review

by Joseph P. Whalen

A recent non-precedent from the Third Circuit is yet another example in a long line of cases that I view as a reason for Administrative Appellate Bodies to use caution before exhausting issues sua sponte. If the agency raises an issue that the appellant did not and gets it wrong, they will be taken to task by the reviewing court. On the flipside of that is the way that the reviewing courts will very liberally construe any Pro Se filing. If a Pro Se "brief" even vaguely or remotely touches on an issue and the agency overlooks or ignores it, the reviewing court will take them to task for that as well. What's the old saying? "Damned if you do and damned if you don't."

Vargas- Sunaz v. Att'y Gen, No. 11-4091 (3rd Circuit, April 25, 2012)^[1] included some interesting footnotes as follows:

² The Board also held that Sunaz's 2009 conviction-which was not charged as a basis for her removal-"is per se a particularly serious crime that bars withholding of removal." We note, however, that the "particularly serious crime" inquiry is confined to the facts underlying the crime upon which removal is predicated. Lavira v. Att'y Gen., 478 F.3d 158, 162, 165 (3rd Cir. 2007).

³ The Government asserts that we lack jurisdiction over Sunaz's attempt to challenge her aggravated felon status because she did not raise the issue before the BIA. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (stating that "an alien is required to raise and exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve the right of judicial review of that claim"). We disagree. In her brief on appeal to the BIA, Sunaz argued that the IJ erred in denying her asylum and withholding applications because of her convictions. Joseph v. Att'y Gen., 465 F.3d 123, 126 (3d Cir. 2006) (recognizing a "liberal exhaustion policy"). Moreover, the BIA affirmed the IJ's conclusion that Sunaz's 2004 conviction was an aggravated felony. Lin v. Att'y Gen., 543 F.3d 114, 123- 24 (3d Cir. 2008) (noting that when the BIA sua sponte addresses an otherwise unexhausted issue, failure to raise the issue on administrative appeal may be excused).

In the above case, the Government filed a Motion to Dismiss which was denied. The particular circumstances and procedural history in the case did not deprive the court of jurisdiction as asserted in the Government Motion. The very liberally construed Pro Se "brief" raised an issue sufficiently to allow the court to find its jurisdiction to review the decision as to a mixed question of fact and law. Such mixed questions require the application of a judgment on the merits. Unlike in the matter of fact-finding below, which is confined to precise standards of review such as: for "substantial evidence", "clear error", or when the reviewer takes Official "administrative or judicial notice" of specific facts widely-known or which are among "current events", judgment is always fully reviewable by any agency appellate body or reviewing court.

".... We have jurisdiction, however, to the extent that Sunaz's pro se brief challenges the BIA's application of the law governing CAT protection to the undisputed facts of record. Toussaint v. Att'y Gen., 455 F.3d 409, 412 n.3 (3d Cir. 2006). Sunaz alleged that she had been harassed in the Philippines because of her sexual orientation. She claimed that while living there she was often teased and beaten by other students. In 2007, Sunaz returned to the Philippines to attend her grandmother's funeral. While there, she was taunted by a group of young men at a flea market because of her appearance. One of the men slapped her in the face. The police were called, but they did not take any action. Sunaz claimed that she will face the same type of harm if she is removed to the Philippines. These facts, however, fail to demonstrate that what is likely to happen to Sunaz satisfies the legal definition of torture. 8 C.F.R. § 1208.18(a)(1). Therefore, we will not disturb the BIA's conclusion that Sunaz failed to meet her burden of proof for deferral of removal under the CAT."

As illustrated by this case, the agency's actions in considering a conviction which was not included in the charging document as a basis for removal opened a door which provided the court with yet another criticism of the BIA decision. This was in addition to the review of the mixed question of fact and law as to the review of judgment that the Government brief overlooked.

This minor case can serve as fodder for a cautionary tale to USCIS as well as EOIR. The AAO^[2] is currently supposed to be preparing a Notice of Proposed Rulemaking (NPRM) on Appeals, Motions, and its own Reform. The NPRM is overdue. It was supposed to be published in March 2012, as indicated in the Regulatory Agenda which was published in the Federal Register in January 2012. I bring up the AAO because it routinely performs full de novo reviews whether needed or not in most cases. Conversely, AAO sometimes incorrectly dismisses or rejects some cases quite arbitrarily without any discussion of the merits based on rather nonsensical procedural grounds. AAO has been shielded from more critical review from the courts because their decisions are generally challenged in District rather than Circuit Courts, which results in less critical press. Think about it, I am.

While awaiting the much anticipated and long overdue AAO Reform efforts to materialize, we are left with guidance gleaned from prior decisions such as follows from this rather ubiquitous blub and accompanying footnote:

"The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 38 1 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal. ¹ An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis)." _________________

"¹ The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(l). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988)."

A case that has provided some cautionary guidance on AAO's full de novo approach that may have been overlooked for its lesson on the dangers of doing more than necessary is the Ninth Circuit review of an I-140 petition filed on behalf of an alien of extraordinary ability, specifically, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Everyone else seems to be obsessed with the obvious and may have overlooked an underlying concept. Yes, AAO conflated the two-steps of an analysis process into a single-step adjudication process. However, I have not seen very many folks (none really) paying much attention to the fact that the ultimate decision of the Ninth Circuit was that the petition under review was not supported with sufficient evidence to meet the threshold showing which was the essence of the first step. AAO proceeded to go beyond the rudimentary first step and therefore the Ninth Circuit had to address the whole thing which may have been somewhat distracting as to that key point. This reality may have drawn readers' attention away from the fact that since the first part of the process lead to a proper conclusion which was to deny the petition, there was no need to proceed with anything beyond that finding. The AAO decisions post-Kazarian routinely go too far.

In a non-precedent decision dated June 20, 2011^[3], the AAO demonstrated the futility of its continuing misconstrued understanding of the point I am trying to make.

"In this case, the AAO concurs with the director's determination that the petitioner has failed to demonstrate her receipt of a major, internationally recognized award, or that she meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). A final merits determination that considers all of the evidence follows."

If the evidence fails to show that the initial threshold showing has not been made, that is, "the petitioner failed to demonstrate .... minimum eligibility" why go any further? It is a waste of resources to conduct the final merits determination! Unnecessary analysis creates an opportunity to make mistakes that will come back to haunt AAO later. I would not reach an issue unless required to do so. I have learned the hard way that the best way to keep your foot out of your mouth is to keep your mouth shut when circumstances do not dictate otherwise.

¹http://www.ca3.uscourts.gov/opinarch/114091np.pdf

²U.S. Citizenship and Immigration Services (USCIS) contains an Administrative Appeals Office which issues decisions on challenges to certain Immigration and Citizenship Benefits Denials issued by the Service Center, Field Office, and District Directors

³http://www.uscis.gov/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2011/Jun202011_01B2203.pdf

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

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